1879Chinese Legal History: Jacob and the Kang Gau
- May 1, 2009To: CGC
Cc: Synoptic, WSW
On: Chinese Legal History: Jacob and the Kang Gau
One of the documents often relied on in writing the history of Chinese law
is Shu 37, the Kang Gau, ostensibly a charge by Jou-gung on behalf of the
young King Chvng (to whom he was acting as regent) to Chvng-wang's uncle,
Kang-shu, who is being put in charge of the conquered Shang population,
circa 01050, and it is supposed by credulous persons that the document
itself is a transcript, and itself dates from that year. The credulous
approach leads to an accurate picture of Chinese law - only, that picture is
skewed about 600 years out of plumb. Herewith one of a series of notes
designed as correctives.
THE KANG GAU
The Kang Gau document is interesting for its introduction of, indeed its
insistence on, the doctrine of intentionality. The writer takes time to
insist that those who commit inadvertent crimes are not to be punished. It
seems to me that a similar point was reached in the evolution of Greek law
at about the time of the rumored Solonic reforms, as they may be glimpsed in
eg the speeches of Demosthenes (I think I found a reference to this in
Raphe's book The Justice of the Greeks, but lost it before I could write it
down, and couldn't recover it - lousy index).
One of the curious details about the Kang Gau is that it contradicts itself,
and in so doing signals the presence of an interpolated segment. The
document starts out by insisting that the laws of Shang are good, and that
the previous rulers of Shang were sagely, and ordering Kang-shu to follow
their precedent. So far so nice. Then comes an inserted section (Legge
15-19), in which the laws to be followed are not those of Shang, but rather
those of King Wvn (of Jou), and all miscreants are to be put to death. The
doctrine of intentionality is not exactly cancelled, but it is overshadowed
by hatred for wrongdoers. The miscreants themselves, robbers as well as
murderers, are excoriated in severe terms. Reading across that juncture is
like hitting one of the violent and interpolated diatribes in the Epistle of
Jacob (curiously called "Epistle of James" in and around Lincolnshire; I
follow Patristic and Continental usage in keeping to the Greek original).
The tone suddenly changes. "All who of themselves commit crimes, robbing,
stealing, practicing villainy and treachery, and who kill men or violently
assault them to take their property, being reckless and fearless of death -
these are abhorred by all. The King says, O Fvng, such great criminals are
greatly abhorred, and how much more detestable are the unfilial and
unbrotherly - as the son who does not reverently discharge his duty to his
father, . . ."
So you see, not only is authority transferred from Shang to Jou tradition,
but the central concern is transferred from the usual and universally
recognized interpersonal crimes to the typical Sinitic obsession with family
subordination. "You must resolve to deal speedily with such according to the
penal laws of King Wvn, punishing them severely and not pardoning them."
At section 20 the previous mild tone returns, and the happiness of the
people again comes convincingly into view, and the laws of Yin (Shang) are
once again the reference standard. It is all pretty obvious, to any
reasonable literary sensibility, that we have had a minor key intrusion into
an otherwise straightforwardly sunny E-flat piece.
And as with the Epistle of Jacob (whose literary affinities in the original
layer are to earlier documents than those of the violently angry
interpolations), so with the Kang Gau: there is external confirmation. The
quotes from the Kang Gau in 04c texts are all from the original layer. The
first demonstrable external knowledge of the interpolated middle section of
the Kang Gau comes around the second decade of the 03rd century, a time of
great cultural upheaval, and thus suitable for a rethinking of the relative
value of Shang and Jou traditions.
I regret that I am not able to show "rough margins" in the Kang Gau, whereas
the Epistle of Jacob - remarkably for a document whose Greek is universally
praised - gets into grammatical and semantic trouble at many of the
interpolation margins. Historical and textual parallels are only parallel to
a limited extent.
COMPARATIVE LEGAL HISTORY
The doctrine of intentionality does not seem to come from below, as do many
of the legal criticisms or suggestions made in the course of the classic
debates of the Chinese 04c and 03c. As far as the Kang Gau is witness to it,
the notion apparently comes from above: from those who knew the law as the
judges and not (eg Mwodz 17) as the judged. The people's cry is for
fairness. The magistrate's concern is for accuracy.
But accuracy about what? The revolution of the period is in the
interiorization of these general concerns: the res gestae is not in the
details of the crime, but in the inclination of the heart of the accused.
The whole phenomenon of interiorization in the 04c - to which Waley and
others have perceptively pointed - looks like being essentially an elite
matter. But together with its various allomorphs, such as the question of
intrinsicity, it is a very important one, and the main thought currents of
the 04c only come clear if it is taken into consideration.
Is there a comparable development at the Greek end? Do Greek people develop
a savable soul somewhere along in here, or do they continue in a more
[E Bruce Brooks
Warring States Project
University of Massachusetts at Amherst]